Michelle Diane Leisz v. Donald John Leisz

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
August 12, 2025
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2024AP282 Cir. Ct. No. 2022FA31

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

IN RE THE MARRIAGE OF:

MICHELLE DIANE LEISZ,

PETITIONER-RESPONDENT,

V.

DONALD JOHN LEISZ,

RESPONDENT-APPELLANT.

APPEAL from a judgment of the circuit court for Pierce County:
ELIZABETH L. ROHL, Judge. Affirmed.

Before Stark, P.J., Hruz, and Gill, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2024AP282

¶1 PER CURIAM. Donald John Leisz appeals from a judgment of
divorce ending his marriage to Michelle Diane Leisz.1 Donald challenges the
portions of the circuit court’s judgment regarding maintenance, property division,
and placement of the parties’ minor children. For the reasons that follow, we
reject all of Donald’s arguments on appeal, and we affirm the circuit court’s
judgment of divorce.

BACKGROUND

¶2 Donald and Michelle were married on July 22, 1995. Divorce
proceedings were commenced on March 15, 2022. The parties have two minor
children, who were, at the time of the trial, 17 and 13 years old. The circuit court
granted a judgment of divorce to the parties on December 28, 2023.2

¶3 Prior to granting the parties a divorce, the circuit court held a bench
trial. Several witnesses testified, and we will discuss their testimony as necessary
below. The primary conflict in this case revolved around the parties’ employment
history and its resulting impact on the court’s judgment regarding child support,
maintenance, property division, and placement. After the parties were married,
Donald enrolled in college and graduated with a degree in civil engineering.
Donald worked in that field until the couple’s daughter was born, at which time he
and Michelle made the joint decision that Donald would quit his job and stay
home. Testimony revealed that the decision for Donald to stay home was based
on the parties’ not wanting their child to go to daycare; Michelle making more

1
Because the parties share a surname, we refer to them by their first names throughout
the remainder of this opinion.
2
The circuit court subsequently entered an amended judgment on January 10, 2024.

2
No. 2024AP282

money at the time; and, according to Michelle, Donald “hat[ing] his job” and the
job being “hard on his body.”

¶4 When the parties’ second child was born, they discussed changing
the arrangement. Around this time, Michelle’s “job went under,” and she
suggested that they “share the responsibility for earning.” However, Donald
continued to stay at home with the children, and Michelle found a new position.

¶5 In approximately 2015, when both children were in school, Michelle
explained that she actively tried to convince Donald to return to the workforce,
even applying for jobs for him and suggesting he try another field of work.
However, according to Michelle, Donald “really wasn’t interested in any of that.”
Donald agreed during his testimony that Michelle “started to push on the job,”
although he claimed it was in 2017. Thus, Michelle argues that “[w]hile the
parties agreed that when [their first child] was born, [Donald] would be a
stay-at-home parent, the parties did not agree on how long that would last, nor
who would take on that responsibility when [their second child] was born.”

¶6 Donald did not work outside the parties’ home until they separated
in 2020, when Donald took a position with Menards. Based on the evidence
presented, Donald is self-supporting on his current salary. He is currently living in
the marital home, which has no mortgage, and Michelle covers all expenses for the
children. Donald testified, however, about several things that he would like to
spend money on, but does not have the savings for, including property
improvements, fishing trips, and an updated car or truck.

¶7 Since 2020, the parties’ children have lived predominantly with
Michelle, and Donald has spent only a few overnight visits with the children
during this period. According to Michelle, she tried to make placement plans with

3
No. 2024AP282

Donald and to make the children available to see him, but Donald would tell her
“when he wanted to see them, and [she] did [her] best to make them available
for … him.” Michelle testified that Donald had seen the children 40 times in
24 months based on a “log” she kept of their visits from 2021 to 2023. The
evidence also revealed that instead of communicating with Michelle, Donald
began communicating placement plans directly with the children.

¶8 The guardian ad litem (GAL) provided a recommendation regarding
the children’s placement at the trial. As relevant here, the GAL recommended that
Michelle be awarded primary placement, explaining that “given the last three
years, at least since [Michelle] has moved from the marital residence, [and] the
extremely minimal amount of time that [Donald] has had contact with the
children, I don’t believe that that supports him having [more time] … as he’s
requesting.” The GAL stated that “the wishes of the children weigh heavier in this
instance than some of the other factors.” According to the GAL, the children
wished to continue the current placement, expressing “a strong reticence to
spending overnights with [Donald] at the … prior marital residence.” The GAL
explained that their son expressed concerns with his room being “filled with a lot
of items … and a mess,” and their daughter wanted “some time also to work in her
room before having overnights there because it’s set up for a younger child.”
Nevertheless, the GAL explained that the kids generally enjoy spending time with
Donald. The GAL also stated that the children were uncomfortable with Donald
putting them in the middle of placement discussions.

4
No. 2024AP282

¶9 The circuit court reached the following conclusions based upon its
review of the evidence and the factors in WIS. STAT. ch. 767 (2023-24).3
Although Donald had requested maintenance, the court concluded that he was not
entitled to maintenance at that time. The court also did not order child support,
explaining that Donald was self-supporting, but if Donald were “ordered to pay
child support, [he] would not have the same ability to meet his financial needs and
would perhaps trigger a maintenance award.” However, the court specifically held
“open child support and reserve[d] maintenance to [Donald] until the youngest
minor child emancipates.”

¶10 On the issue of property division, the circuit court ordered an
equalization payment of $50,000 to Donald. The court observed, however, that
even with the equalization payment, an unequal division of property remained.
According to the court, “the lion’s share of [Michelle’s] awarded property comes
from her retirement accounts,” while Donald was awarded the marital home,
which had no mortgage, as well as most of the household furnishings, “which was
likewise not factored in financially.” The court explained that as a result, Michelle
“must make rental payments or otherwise pay housing costs” and “will be
responsible for [the children’s] variable expenses.” Thus, the court stated that
“[d]espite the fact that this is not a perfectly even split, the court believes it to be
fair and reasonable under all the circumstances.”

¶11 Finally, the circuit court awarded Michelle primary placement of the
children. The court considered all the relevant WIS. STAT. § 767.41(5) factors for
custody and physical placement, including that the teenage children wished to

3
All references to the Wisconsin Statutes are to the 2023-24 version.

5
No. 2024AP282

remain with Michelle; that the children expressed, as relayed by the GAL, “a
reluctance to spend time overnight with their father” and needed “some time to
make themselves feel comfortable as they haven’t stayed overnight in the home
for the last three years”; and that “[s]ince separating, [Donald] has exercised
almost no placement with the children.” Donald appeals.

DISCUSSION

I. Maintenance

¶12 Donald first challenges the circuit court’s decision not to award
maintenance. A maintenance decision in a divorce case is committed to the circuit
court’s discretion. LeMere v. LeMere, 2003 WI 67, ¶13, 262 Wis. 2d 426, 663
N.W.2d 789. We will not disturb that decision on review unless there has been an
erroneous exercise of discretion.4 Id. We will uphold the court’s discretionary
decision as long as the court “examined the relevant facts, applied a proper
standard of law, and, using a demonstrated rational process, reached a conclusion
that a reasonable judge could reach.” Id. (citation omitted). Importantly, “we
generally look for reasons to sustain discretionary decisions.” Gerrits v. Gerrits,
167 Wis. 2d 429, 441, 482 N.W.2d 134 (Ct. App. 1992) (citation omitted).

4
We note that throughout their briefing before this court, both Donald and Michelle use
the phrase “abuse of discretion” when referring to our standard of review. In 1992, our supreme
court replaced that phrase with “erroneous exercise of discretion.” See, e.g., Shirk v. Bowling,
Inc., 2001 WI 36, ¶9 n.6, 242 Wis. 2d 153, 624 N.W.2d 375. In her response brief, Michelle
acknowledges the difference in terminology, but she incorrectly states that previous decisions of
this court use these phrases “interchangeably.” She then explains that she is choosing to use the
“abuse of discretion” terminology in her brief. We reiterate that, in Wisconsin, the phrase
“erroneous exercise of discretion” has replaced any other previously used phrases.

6
No. 2024AP282

¶13 The touchstone of the maintenance analysis is the list of statutory
factors enumerated in WIS. STAT. § 767.56. See LaRocque v. LaRocque, 139
Wis. 2d 23, 31-32, 406 N.W.2d 736 (1987). These factors “reflect and are
designed to further two distinct but related objectives” within a maintenance
award: “to support the recipient spouse in accordance with the needs and earning
capacities of the parties (the support objective) and to ensure a fair and equitable
financial arrangement between the parties in each individual case (the fairness
objective).” Id. at 32-33.

¶14 In this case, Donald argues that the “overall balance of the factors
weighs heavily towards” awarding him maintenance, “both regarding the parties
relative needs and his need for support as well as the fairness factor referenced in”
LaRocque. As a point of clarification, Donald does not argue that the circuit court
erroneously exercised its discretion by failing to consider the relevant statutory
factors. In truth, this argument would fail given that the court’s divorce judgment
discusses the evidence related to each factor in detail. Instead, Donald essentially
disagrees with the conclusions that the court reached based on the evidence, and
he argues that certain factors should have been weighed more heavily in favor of a
maintenance award.

¶15 Donald spends seven pages of his brief-in-chief discussing his view
of each of the WIS. STAT. § 767.56 factors and the application of those factors to
the facts of this case. He makes the following arguments: (1) the length of Donald
and Michelle’s marriage weighs heavily in favor of maintenance; (2) the court
failed to address Donald’s “inability to do certain physical labor because of back

7
No. 2024AP282

issues”;5 (3) the court failed to “recognize that [Donald] helped support [Michelle]
before they were married by allowing her to use his car to get to and from
school”;6 (4) the court failed to “recognize that the reason [Donald] is unable to
use [his civil engineering] degree is because he sacrificed his job and career in
order to stay home with the children and take care of the house”; (5) the court
found that Donald was “earning at capacity to what he can at the current time,” but
it failed “to acknowledge that the reason that” Donald was out of the workforce
and lost income potential was because he “sacrificed his career for the benefit of
the family”; (6) the court found that Donald “already is self supporting,” but it
“ignore[d] the standard of living enjoyed during the marriage”; (7) “[t]he [c]ourt
seem[ed] to rely heavily on the idea that because [Donald] has lived within his
post separation means that he is not entitled to spousal maintenance”; (8) “the help
that [Donald] provided and support of taking care of the kids so [Michelle] could
work more” should weigh more heavily in favor of maintenance; (9) the court
erred by treating the money Donald “would be spending on child support as
maintenance”; and (10) the court’s decision was “unfair” because “[t]his is a long
term marriage where the party earning less money sacrificed his earning potential
to stay home and take care of the kids so the other party could focus on her
career.”

5
Donald testified that he would not physically be able to do the work he was doing
before their daughter was born in the civil engineering field because his “back’s been out a couple
times.” Donald did not testify that his back pain would impact another job, and he did not submit
any testimony from a medical professional supporting his testimony.
6
Michelle notes, however, that while she did borrow Donald’s car for transportation to
and from school prior to the marriage, she was required to do so because Donald totaled her car.

8
No. 2024AP282

¶16 None of the issues presented by Donald cause us to question the
circuit court’s maintenance decision, and we conclude that Donald has not
established that the circuit court erroneously exercised its discretion by denying
him a maintenance award. We note first that beyond the citation to LaRocque,
Donald does not cite any legal authority in support of his arguments. Essentially,
he asserts that the court applied an improper standard of law by not sufficiently
considering the LaRocque fairness factor. His arguments, however, are based
entirely on his disagreement with the weight that the court gave to each factor or
the consideration the court gave to his own testimony.

¶17 The weight to be accorded to the various maintenance factors lies
within the circuit court’s discretion. See Meyer v. Meyer, 2000 WI 132, ¶49, 239
Wis. 2d 731, 620 N.W.2d 382 (Prosser, J., concurring) (“Sound discretion in
maintenance determinations must reflect consideration of the factors set out in [the
maintenance statute], but the factors in the statute do not appear to be weighted,
implying that the weighting will be done by the circuit court.”); Carty v. Carty, 87
Wis. 2d 759, 768, 275 N.W.2d 888 (1979). Further, we are an error-correcting
court. Blum v. 1st Auto & Cas. Ins. Co., 2010 WI 78, ¶50, 326 Wis. 2d 729, 786
N.W.2d 78. “[W]e do not look to ‘whether [we] would or would not have
[reached the same decision] but rather whether the circuit court [erroneously
exercised] its discretion in reaching its decision.’” Casper v. American Int’l S.
Ins. Co., 2011 WI 81, ¶30, 336 Wis. 2d 267, 800 N.W.2d 880 (citation omitted).

¶18 In effect, Donald asks us to view the evidence differently than the
circuit court viewed it, with an emphasis on the evidence that best supports his
position. Our standard of review does not allow us to do so. That the court chose
not to make findings of fact and conclusions consistent with Donald’s view does
not mean it erroneously exercised its discretion.

9
No. 2024AP282

¶19 Based on the evidence presented, the circuit court appropriately
considered the facts that Donald has an advanced degree in civil engineering,
financed with marital funds, that he “does not use”; that he is “currently employed,
albeit below his educational level”; that “[h]is absence from the [job]
market … likely means that he will not be employable in that field again”; that the
initial decision for Donald to stay home with the children was a joint decision, but
“there was testimony that the parties did not agree [on] how long [Donald] stayed
at home” and he may have found more work opportunities “[h]ad he returned to
work sooner”; that “he is able to meet his financial needs on his current income,”
save money, and is self-supporting; and that although the children’s primary
placement with Michelle meant that Donald would be responsible for child
support, the court was not awarding child support and considered that as a factor
in the maintenance decision. Moreover, and importantly, Donald fails to
acknowledge that the circuit court did not outright deny him maintenance: it held
maintenance open to be set in the future, if appropriate, after the children reach the
age of majority.

¶20 Based on the foregoing, we conclude that the circuit court did not
erroneously exercise its discretion by applying the statutory factors to achieve both
objectives of maintenance. See LaRocque, 139 Wis. 2d at 32-33. The court did
not err by reserving maintenance to Donald at this time.

II. Property Division

¶21 Next, Donald challenges the circuit court’s decision regarding
property division. A circuit court’s decision regarding the division of marital
property is also a discretionary decision. LeMere, 262 Wis. 2d 426, ¶13. Courts
are to follow WIS. STAT. § 767.61 when deciding how to divide marital property.

10
No. 2024AP282

McReath v. McReath, 2011 WI 66, ¶¶23-24, 335 Wis. 2d 643, 800 N.W.2d 399.
The statute creates a rebuttable presumption of an equal property division. Id.,
¶24. In order to deviate from that presumption, the court must consider all of the
statutory factors in § 767.61(3). See LeMere, 262 Wis. 2d 426, ¶16. “This is not
to say that the circuit court is precluded from giving one statutory factor greater
weight than another, or from concluding that some factors may not be applicable
at all.” Id., ¶25. We also review a circuit court’s division of marital property for
whether the division was “fair and equitable.” Danielson v. Danielson, 2024 WI
App 57, ¶9, 414 Wis. 2d 1, 13 N.W.3d 239 (citation omitted).

¶22 On appeal, Donald asserts that although “[t]he presumption is that
the marital estate should be divided equally,” the court divided the estate
unequally, and “[t]he explanation the [c]ourt gave for dividing [it] unequally was
not in itself reasonable.” According to Donald, the court explained the unequal
distribution by noting that Michelle’s portion comes almost entirely in the form of
her retirement accounts, and Donald argues that “[i]t is not reasonable to assert
that assets are unequal simply because of the form that they take.” Donald also
contends that it is “patently unfair” to use the same argument, used to justify no
maintenance award, that Donald is being given the mortgage-free marital home “in
order to justify an unequal property distribution.”7 Donald further reasons that the
circuit court erred because it should have considered that Michelle “makes more

7
Donald contends that the parties built the marital homestead using money that Donald
brought into the marriage and borrowed from his family, as well as “sweat equity” because
Donald and his family did the bulk of the work in building the house. Any funds that Donald
brought into the marriage became marital funds upon building the joint residence, see WIS. STAT.
§ 767.61; McLaren v. McLaren, 2003 WI App 125, ¶8, 265 Wis. 2d 529, 665 N.W.2d 405, and,
during this period, it was Michelle’s sole income that paid the mortgage. Thus, Donald’s
argument does not serve as a basis to overturn the circuit court’s decision.

11
No. 2024AP282

than three times as much as [Donald] and is therefore more able to pay for a
mortgage or rent” and that Donald “provided the money from premarital funds to
purchase the land and is also the one who built the land [sic].”8

¶23 We conclude that the circuit court properly considered the WIS.
STAT. § 767.61 factors and reasonably determined that the presumption of equal
property division had been rebutted. The court divided the marital property and
ordered Michelle to make an equalization payment to Donald in the amount of
$50,000.9 The court acknowledged, however, that its decision, even with the
equalization payment, “still results in an unequal property division.” The court
explained the disparity by reasoning that “the lion’s share of [Michelle’s] awarded
property comes from her retirement accounts,” which presumably meant the funds
were not available to Michelle for some time; Donald “kept most of the household
furnishings (as he kept the marital home) which was likewise not factored in
financially”; Donald was “awarded the marital home and additional real estate that
is owned without any mortgage”; and Michelle “must make rental payments or
otherwise pay housing costs” and “will likewise be exercising primary placement
of the children and will be responsible for their variable expenses.” Thus, the
court believed that an unequal distribution was “fair and reasonable under all the
circumstances.”

8
Again, we note that Donald offers no legal authority in support of his arguments.
See State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992) (“Arguments
unsupported by references to legal authority will not be considered.”); Industrial Risk Insurers v.
American Eng’g Testing, Inc., 2009 WI App 62, ¶25, 318 Wis. 2d 148, 769 N.W.2d 82 (“[W]e
will not abandon our neutrality to develop arguments.”).
9
Michelle argued for an equalization payment of $27,541.90, while Donald believed that
an equalization payment of $73,449.50 was required.

12
No. 2024AP282

¶24 As stated previously, an equal distribution of marital property is
merely a starting point. See McReath, 335 Wis. 2d 643, ¶24. The circuit court
appropriately considered the WIS. STAT. § 767.61(3) factors and supported its
discretionary decision to divide the marital estate unequally. Beyond asserting
that the court’s explanation was “not … reasonable,” Donald fails to point to a
legal error and fails to convince us that the court did not “reach[] a conclusion that
a reasonable judge could reach.” See LeMere, 262 Wis. 2d 426, ¶13 (citation
omitted).

III. Child Placement

¶25 Finally, Donald argues that the circuit court erroneously exercised its
discretion by ordering primary physical placement of the children with Michelle.
Donald had requested a 50/50 week-on-week-off schedule. He asserts that the
court’s decision to award primary physical placement to Michelle is contrary to
the children’s best interests, and “[t]here is no reason that he could not share
placement of the children.” According to Donald, he “was the children’s primary
caregiv[er] for the great majority of their lives,” and Donald’s testimony at the
trial was “that he did in fact attempt to see the kids [during the parties’ separation]
and that it appeared to him that [Michelle] would purposefully schedule the
children for activities on weekends that he had off.” Donald further notes that he
resides in the marital home; that “upon doing some redecorating no doubt [the
children] would be comfortable” in the home; and that there are no allegations that
Donald “has abused the children, has a drinking or drug problem, or is somehow
otherwise unfit to share placement of the kids.”

¶26 Physical placement of a minor child in a divorce action is governed
by WIS. STAT. § 767.41(4). This statute provides that “[i]n determining the

13
No. 2024AP282

allocation of periods of physical placement, the [circuit] court shall consider each
case on the basis of the factors in sub. (5)(am).” Sec. 767.41(4)(a)2. The statute
then directs that the court set a placement schedule that “allows the child to have
regularly occurring, meaningful periods of physical placement with each parent
and that maximizes the amount of time the child may spend with each parent,
taking into account geographic separation and accommodations for different
households.” Id.

¶27 However, case law states that this requirement does not create a
presumption of equal placement between the parties. Landwehr v. Landwehr,
2006 WI 64, ¶¶19-23, 291 Wis. 2d 49, 715 N.W.2d 180. Instead, the circuit court
must take into account all of the relevant factors as set forth under WIS. STAT.
§ 767.41 in making its placement decision. See Landwehr, 291 Wis. 2d 49, ¶20.
Decisions on child placement are committed to the sound discretion of the circuit
court. Valadez v. Valadez, 2022 WI App 2, ¶12, 400 Wis. 2d 523, 969 N.W.2d
770 (2021).

¶28 We conclude that the circuit court did not erroneously exercise its
discretion by awarding primary physical placement of the children to Michelle.
Here too, Donald fails to cite any legal authority in support of his arguments.
See State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992). He
simply expresses general disagreement with the conclusions the court reached. In
its judgment of divorce, the circuit court specifically addressed each of the WIS.
STAT. § 767.41(5)(am) factors and explained how those factors impacted its
ruling. Based on our review of the record, we conclude that the circuit court
appropriately exercised its discretion in this regard.

14
No. 2024AP282

¶29 It was significant to the circuit court’s decision that “[i]n the three
years since separating[, Donald] has done nothing to facilitate substantial
placement time with his children.” The evidence presented by Michelle revealed
that during the separation period, Donald had a small number of infrequent visits
with the children. According to the court, Donald “blames [Michelle] for [the
reduced placement time] because the children are busy[,] but the evidence shows
that [Michelle] has offered to change their schedule to accommodate a visit with
[Donald].” Importantly, the court also found that “[n]either parent seems to have
gone out of their way to assist or to prevent relationships with the other parent.”
These findings were not clearly erroneous.

¶30 Recognizing that the children “expressed a reluctance to spend time
overnight with their father,” the circuit court ordered that placement with Donald
would start without overnights but would increase to overnights every other
weekend with additional overnight placement during the summer dependent on
Donald’s work schedule. The court supported its decision by finding that “[i]t
does seem that with some time and effort by [Donald] to create comfortable spaces
for the children that they will feel more comfortable spending time at [Donald’s]
home.” Thus, the court gave greater weight to the wishes of the parties’ children,
who are both at an age where they should have agency to make decisions about
their lives. Donald fails to show that the court erroneously exercised its discretion
in this regard.

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

15